RethinkingPopularRepresentationinAgencyRulemaking.pdf

RULEMAKING UNDER THE 2010 MODEL STATE
ADMINISTRATIVE PROCEDURE ACT

Ronald M. Levin*

The adoption of a revised Model State Administrative Procedure
Act’ (MSAPA or Act) in July 2010 was an important event that
amply justified the convening of the symposium of which this article
is an outgrowth. It is the product of more than six years’ effort by a
drafting committee of the Uniform Law Commission (ULC) (also
known as the National Conference of Commissioners on Uniform
State Laws) to rework the preceding MSAPA, which was
promulgated in 1981.^ The 2010 Act offers the states a
comprehensive and carefully prepared template for legislation
governing many aspects of the administrative process.

In this article, I will not generalize about the 2010 MSAPA as a
whole. That task has been ably fulfilled elsewhere in this issue of the
Journal? Instead, I will home in on the Act’s treatment of a single
slice of agency ñinctioning—the rulemaking function—which is
codified primarily in Article 3.’* It is not a small terrain. The
rulemaking provisions of the 1981 MSAPA were the focal point for
an entire treatise written by the co-reporter for that Act, Professor
Arthur Bonfield.^ I certainly do not seek to duplicate Bonfield’s
achievement in this short paper. I will, however, direct attention to

William R. Orthwein Distinguished Professor of Law, Washington
University in St. Louis. The author served from 2007 to 2010 as American Bar
Association advisor to the Drafting Committee to Revise the Model State
Administrative Procedure Act. A shorter version of this article was published in
ADMIN. & REG. L. NEWS, Winter 2011, at 4.

‘ REVISED MODEL STATE ADMIN. PROCEDURE ACT (2010) [hereinafter 2010
MSAPA], available at http://www.law.upenn.edu^ll/archives/ulc/msapa/2010
_flnal.htm.

^ MODEL STATE ADMIN. PROCEDURE ACT (1981) (revised 2010) [hereinafter
1981 MSAPA].

‘ See Michael Asimow, Contested Issues in Contested Cases: The 2010
Revised Model State Administrative Procedure Act, 20 WiDENER L.J. 707 (2011 ).

“2010 MSAPA art. 3.
‘ See ARTHUR EARL BONFIELD, STATE ADMINISTRATIVE RULE MAKING

(1986).

855

856 WIDENER LAW JOURNAL [Vol.20

some of the most noteworthy features of the treatment of rulemaking
in the latest version of the MSAPA.

In part, the divergence between the two Acts refiects the
rethinking of longstanding questions in the administrative law field,
as one would naturally expect when a model act is revised after three
decades’ time. Another reason, however, is that the 2010 MSAPA
addresses a number of procedures and issues that were not even on
the law’s radar screen thirty years earlier.

Readers who are familiar with federal rulemaking practice will
discover that Article 3 is a combination of familiar and innovative
requirements. The most venturesome provision is section 311, which
deals with guidance documents (also commonly known as
interpretive rules and policy statements). I will discuss this provision
in detail below. First, however, I will offer a brief tour of the
MSAPA’s treatment of ordinary rulemaking and some variant forms
of rulemaking procedure. I will conclude with a comparison between
the 1981 and 2010 Acts’ approaches to mandatory rulemaking.

I had an opportunity to participate in the creation of the 2010
MSAPA in my capacity as American Bar Association (ABA) advisor
to the drafting committee. I held that position during the last three
years of the Act’s gestation period (succeeding Professors Michael
Asimow and Jim Rossi, who had previously served in that capacity).
On a personal level, I found this a fascinating, once-in-a-lifetime
experience. It was, in effect, an opportunity to rethink and discuss
almost the entire range of issues in the administrative law
curriculum—but with a twist. When those issues arise in the context
of a discussion about federal law, the conversation is typically
circumscribed by remarks like “the Supreme Court has largely settled
this point” or “the circuits at least agree on this much.” These
boundaries did not apply when the task on the table was to draft
procedures for the states. Federal precedents were frequently
instructive but never dispositive. When committee members
questioned conventional approaches, the issues had to be reargued
afresh as policy questions. I came away with renewed appreciation
for ways in which practice at the state level necessarily differs from
the federal model, and also for ways in which the states inevitably
disagree among themselves about solutions to challenges that, in the
abstract, look similar.

2011] ‘ 2010 MSAPA RULEMAKING 857

Even where no material differences between federal and state
law were complicating the picture, the drafting process frequently
called for creativity and experimentation. The drafting committee
undertook to codify numerous principles that had never before been
expressed in statutory form at either the federal or state levels. The
ambiguity of judicial doctrine can have its virtues, but statutes need
to be clear, concise, and concrete. The need to be definite sometimes
meant compromise.

In my capacity as ABA advisor, I served as a liaison between the
drafting committee and the ABA Section of Administrative Law and
Regulatory Practice (ABA Section), of which I am a longtime active
member.^ To a greater extent than with any other article of the
MSAPA, Article 3 is the product of extensive collaborative efforts
between the drafting committee and the Section. On the whole, the
committee was quite receptive to suggestions from the Section on
rulemaking issues (in contrast to the never-bridged divergence of
opinions between the two groups on the issue of separation of
functions in adjudication’). I believe Article 3 became clearer and
more workable as a result of these consultations. I will describe some
of these interactions below in to shed interpretive light on
various provisions.

This article is intended for multiple audiences. It should be
helpful to legislatures that must now consider whether to enact the
2010 MSAPA, either in whole or in part. Because the MSAPA is a
‘model’ act, not a “uniform” act, the ULC anticipates that states will
adapt it to their existing administrative procedure acts (APAs), or
borrow only selectively from it when they wish to update their state’s
approach to a specific issue. The article should also be of interest to
judges, agency officials, and practitioners who will ultimately live
under the Act and will need to interpret it in light of its purposes.
Finally, the article should be of interest to a general administrative
law readership, because it invites interesting comparisons between
multiple systems’ responses to common challenges.

In this article, I will offer not only descriptions, but also critical
assessments and commentary on the principal rulemaking provisions.

* I served as Chair of the Section from 2000-2001 and have continuously held
other Section offices for about three decades.

‘ See Asimow, supra note 3, at 721-39.

858 WiDENER LAW JOURNAL [Vol.20

Unlike the committee’s patient, painstaking, and capable Reporter,
Professor Gregory Ogden, I was not required by the nature of my role
on the committee to be a neutral figure. I made recommendations that
were accepted in some instances and not in others. Thus, this article
will offer suggestions as to some areas in which, in my view, the
drafting committee’s judgments deserve further deliberation by
legislatures that may consider adopting legislation based on the Act.

Notwithstanding some disagreements, however, I strongly
support the 2010 MSAPA and hope many legislatures will adopt it or
major sections of it. Many states are still operating under versions of
the 1961 MS APA^ and should consider updating their administrative
procedures to reflect the insights and imperatives of recent decades.
Many states also have developed idiosyncratic approaches to
administrative law issues—variations that seem dysfunctional and not
necessarily explainable as responses to special local needs. The
specialized experience, careful draftsmanship, and broad
consultations that shaped the 2010 MSAPA have made it a model
statute that deserves professional respect and attention in many
quarters.

I. THE BASIC RULEMAKING PROCESS

The foundation for Article 3 is a relatively straightforward
definition of the word “rule” in section 102(30) of the Act: “the whole
or a part of an agency statement of general applicability that
implements, interprets, or prescribes law or policy or the
organization, procedure, or practice requirements of an agency and
has the force of law.”^ In material respects, the definition is similar to
its counterparts in previous MSAPAs. I have elsewhere praised those
acts’ definitions as far superior to the poorly drafted definition of
“rule” in the federal APA. “̂ Notice, however, that the 2010 MSAPA

* MODEL STATE ADMIN. PROCEDURE ACT (1961) (revised 1981 & 2010)
[hereinafter 1961 MSAPA].

^ 2010 MSAPA § 102(30).
” Ronald M. Levin, The Case for (Finally) Fixing the APA’s Definition of

“Rule,” 56 ADMIN. L. REV. 1077,1079 (2004). The corresponding language in the
federal APA definition refers to “an agency statement of general or particular
applicability and future effect.” Administrative Procedure Act, 5 U.S.C. § 551(4)
(2006) (emphasis added). Neither of the italicized phrases appears in the MSAPA

2011] 2010 MSAPA RULEMAKING 859

definition refers solely to rules that have the force of law.” Guidance
documents (interpretive rules and policy statements) have their own
definition’^ and are expressly excluded from the definition of
“rule.”‘^ Finally, the MSAPA definition in section 102(30) contains
various subject-matter exclusions, such as exclusions for statements
that could unduly disclose investigative or prosecution strategies to
the public or that concern “only the internal management of an
agency and [do] not affect private rights or procedures available to
the public.””* These provisions are functionally similar to the
categorical exemptions written into the rulemaking section of the
federal APA, section 553.’^

A. Notice

The MSAPA’s rulemaking process revolves around a standard
notice and comment model. Under section 304, the agency begins by
publishing a proposed rule in a state publication comparable to the
FederalRegister.^^ The MSAPA calls this announcement a “notice of
proposed rulemaking,” a term that is standard in federal law and is far
more commonly used in state jurisdictions’^ than the 1981 MSAPA’s
corresponding term, “notice of proposed rule adoption.”‘^ (Similarly,
in referring to a public announcement in which an agency seeks
advice regarding a possible future rulemaking, the MSAPA uses the

definitions, and neither is justified. Administrative lawyers widely recognize that a
basic feature of a rule is that it has “general,” not “particular,” effect. See Levin,
supra, at 1078-83. The language that limits the definition to statements with ftiture
effect is also quite problematic, in part because of its unfortunate implication that
when an agency promulgates a retroactive rule, it need not follow APA rulemaking
procedure. Indeed, the ABA passed a resolution in 2005 urging Congress to clarify
the definition by deleting that phrase. See id. at 1083-88 & n.42.

“2010 MSAPA § 102(30).
” § 102(14).
Ӥ102(30)(F).:
Ӥ102(30)(A)-(E).
‘̂ See 5 U.S.C. § 553(a).
‘* 2010 MSAPA §304(a).
” See, e.g., IDAHO CODE ANN. § 67-5221(1) (2006); 5 I I I . COMP. STAT.

100/5-40(b) (2009); Mo. REV. STAT. § 536.021 (2008); MONT. CODE ANN. § 2-
4-302(4) (2007); W . V A . CODE § 29A-3-5 (2009).

‘M MSAPA§3-106(b).

860 WiDENER LAW JOURNAL [Vol. 20

phrase “advance notice of proposed rulemaking,”‘^ which is routinely
used in federal practice’̂ ” and has been codified by some states in the
same context.’^’)

Unlike the federal APA, Article 3 expressly requires a
rulemaking record. Section 302 prescribes its contents in detail.^^
This record provides a basis for the agency’s decision and, later, for
judicial review.̂ ^ Among the required contents, per subsection (b)(3),
is “a copy and, if prepared, an index, of all factual material, studies,
and reports agency personnel relied on or consulted in formulating
the proposed or final rule.”̂ “* The accompanying comment notes that
this language is “based on language endorsed by” the ABA
Administrative Law Section.^^ Although that is true, the original
version of the Section’s pronouncement referred to items “relied on or
seriously considered by agency personnel.”^^ The drafting committee
dropped the word “seriously.” ̂

Although I understand the members’ hesitation to allow an
agency to withhold (or, some might say, “conceal”) items from the
record that were in fact considered, I suspect that agencies will find
that compliance with the literal meaning of section 302(b)(3) will be
impractical. If an agency official gives fleeting “consideration” to a
document, decides it is completely unhelpful, and puts it aside, I
doubt that any public interest is served by demanding its inclusion in
the official rulemaking record. A qualifier such as “actively

”^2010MSAPA§303(a).
‘° See generally JEFFREY S. LUBBERS, A GUIDE TO FEDERAL AGENCY

RULEMAKING 210-12 (4th ed. 2006) (summarizing advance notice of proposed
rulemaking in federal administrative law); Andrew Emery & Fred Emery, Maybe
the Experts Were Wrong About the ANPRM, ADMIN. & REG. L. NEWS, Winter
2009, at 10. ANPRM is a common acronym for advance notice of proposed
rulemaking.

” See, e.g., 5 ILL. COMP. STAT. 100/5-30(b)(l); R.I. GEN. LAWS § 42-35-2.5
(2009).

^^2010 MSAPA §302.
” § 507(a).
” § 302(b)(3).
” § 302 cmt.
‘^ Section of Admin. Law & Reg. Practice of the ABA, A Blackletter

Statement of Federal Administrative Law, 54 ADMIN. L . REV. 1, 34 (2002)
(emphasis added).

” See § 302(b)(3).

2011] 2010 MSAPA RULEMAKING 861

considered” would have been appropriate. However, the arguably
overbroad coverage of section 302(b)(3) may make no real-world
difference, because the judicial review article of the Act establishes a
presumption of regularity relating to the agency’s compilation of the
rulemaking record. A reviewing court may supervise the agency’s
compilation of the record but may allow discovery or other
evidentiary proceedings to ensure its completeness only upon “a
substantial showing of need. “̂ ^

Section 302 also provides: “If an agency determines that any part
of the rulemakingi record cannot be displayed practicably or is
inappropriate for public display on the Internet website, the agency
shall describe the part and note that the part is not displayed.”^^ The
accompanying comment notes that this provision might “enable an
agency to decide, for example, that a blueprint that may not be
practically displayed on the internet, indecent material, or
copyrighted material should be available for inspection in hard copy
but not posted on the Internet.”^° I have heard agency counsel at the
federal level express puzzlement as to how the norm of posting
rulemaking comments online can be applied to copyrighted material
as well as comments that are tasteless, scurrilous, or worse. The
MSAPA solution might have appeal as a model for federal agencies
to follow.

Among the items that must be included in the notice of proposed
rulemaking are “a citation to and summary of each scientific or
statistical study, report, or analysis that served as a basis for the

” § 507(c)(l). The presumption is well recognized in the extant case law. See
Bar MK Ranches v. Yuetter, 994 F.2d 735, 740 (10th Cir. 1993) (citing Wilson v.
Hodel, 758 F.2d 1369, 1374 (10th Cir. 1985)) (“[T]he designation of the
Administrative Record, like any established administrative procedure, is entitled to
a presumption of administrative regularity. The court assumes the agency properly
designated the Administrative Record absent clear evidence to the contrary.”);
Amfac Resorts, LLC v.’U.S. Dep’t of Interior, 143 F. Supp. 2d 7,12 (D.D.C. 2001)
(“[A] party must provide good reason to believe that discovery will uncover
evidence relevant to the Court’s decision to look beyond the record. Thus, a party
must make a significant showing-variously described [in case law] as a ‘strong’,
‘substantial’, or ‘prima facie’ showing-that it will find material in the agency’s
possession indicative of bad faith or an incomplete record.”).

^’2010MSAPA§302(a).
‘° § 302 cmt.

862 WiDENER LAW JOURNAL [Vol. 20

proposed rule, together with an indication of how the full text of the
study, report, or analysis may be obtained.”^’ This disclosure
requirement was included at the suggestion of the ABA Section. It
effectively codifies the so-called Portland Cement doctrine,^^ which
is a standard feature of rulemaking practice at the federal level. In the
federal cases, disclosure of scientific or technical information
underlying a rule has been deemed essential to effective use of the
opportunity to comment.^^ However, the absence of explicit statutory
authority for the doctrine in the federal APA has been troublesome.
Questions about its legitimacy are still being raised.̂ ‘* Hence the
desirability of codification. The language used in section 304 is based
on a New York statute.^^ Ironically, the New York legislature had to
act because that state’s highest court had refused to read the Portland
Cement requirement into the state’s ^̂

B. Regulatory Analysis

Section 305 of the MSAPA requires the agency to prepare a
regulatory analysis to accompany rules that will have an expected
economic impact of more than a specified amount (to be determined
by the legislature).^’ Essentially, this is a requirement of cost-benefit

” § 304(a)(6).
” See Portland Cement Ass’n v. Ruckelshaus, 486 F.2d 375, 392-94 & n.67

(D.C. Cir. 1973) (“Obviously a prerequisite to the ability to make meaningftal
comment is to know the basis upon which the rule is proposed.”).

” See, e.g.. Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 236-37
(D.C. Cir. 2008); Conn. Light & Power Co. v. NRC, 673 F.2d 525, 530-31 (D.C.
Cir. 1982) (“An agency commits serious procedural error when it fails to reveal
portions of the technical basis for a proposed rule in time to allow for meaningftil
commentary.”); 1 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 7.3, at
436 (4th ed. 2002).

”^ See Am. Radio Relay League, 524 F.3d at 245-47 (Kavanaugh, J., dissenting
in part); AARP v. Equal Emp’t Opportunity Comm’n, 489 F.3d 558, 567 (3d Cir.
2007); Jack M. Beermann & Gary Lawson, Reprocessing Vermont Yankee, 75
GEO. WASH. L . REV. 856, 894-95 (2007).

” N.Y. A.P.A. LAW § 202-a (McKinney 2003).
‘^ Indus. Liaison Comm. v. Williams, 527 N.E.2d 274, 276 (N.Y. 1988). See

generally PATRICK J. BORCHERS & DAVID L. MARKELL, NEW YORK STATE
ADMINISTRATIVE PROCEDURE AND PRACTICE § 4.7 ( 1995) (discussing disclosure of
data and study information in rulemaking).

“2010MSAPA§305(a), (c).

2011] 2010 MSAPA RULEMAKING 863

analysis. The regulatory analysis requirement carries the potential to
bog down the rulemaking process with inquiries that state agencies,
with their limited size and budgets, do not have the resources to
pursue rigorously. Superficial analyses may be the result.
Hopefully, legislatures will heed the admonition in the official
comment that they should set the triggering level for this requirement
high enough “so that the number of regulatory analyses prepared by
any agency are proportionate to the resources that are available.”^^

Unlike the usual situation in federal law,’**’ questions as to
whether an agency has fulfilled its regulatory analysis obligation are
reviewable in court. The test is whether the agency made a “good
faith effort to comply.”‘*’ In my view, if states elect not to follow the
federal model, they should not enact a more rigorous standard of
review than this test. Otherwise, the agency’s determinations under
section 305 would invite a host of challenges, because they would
often have to be based on unprovable assumptions, rough factual
estimates, and predictions. This vulnerability would be particularly
problematic at the state level, where the available resources and
expertise for conducting sophisticated cost-benefit analyses are much
scarcer than at the federal level.’*^ Moreover, the need to evaluate the
agency’s effort against specialized professional norms of policy
analysis would strain the outer limits of judicial competence. In
several states in which there is no explicit bar to judicial review of
regulatory analyses, I have seen courts apply regulatory analysis
requirements quite undemandingly, perhaps refiecting a tacit
acknowledgment that they cannot effectively play a major role in this

^’ Richard Whisnant & Diane De Witt Cherry, Economic Analysis of Rules:
Devolution, Evolution, and Realism, 31 WAKE FOREST L. REV. 693,696-97 (1996).

^’ § 305 cmt.
”*’ Most federal cost-benefit analysis is conducted pursuant to a presidential

executive ; agencies’ compliance with the is not reviewable. 5ee, e.g.,
Michigan v. Thomas, 805 F.2d 176, 187 (6th Cir. 1986). For my critique of
legislative proposals that would provide for judicial review of federal agencies’
compliance with cost-benefit analysis obligations, see Ronald M. Levin, Judicial
Review of Procedural Compliance, 48 ADMIN. L. REV. 359 (1996).

” § 305(f).
“̂ See Whisnant & Cherry, supra note 38, at 696-97.

864 WiDENER LAW JOURNAL [Vol. 20

Finally, even if judicial review of compliance with section
305 were barred entirely, the courts’ opportunity to consider the
regulatory analysis during review of the merits would give judges
some ability to monitor the seriousness of the agency’s analytical
effort.

C. Public Participation and Final Issuance

Section 306 of the MSAPA provides for public participation. It
codifies a logical set of guidelines for coordinating public comments
with the statutorily defined rulemaking record. The agency “shall
consider” comments and information submitted by members of the
public during the proceeding.’*’* This essentially means the agency
will need to respond in the final explanatory statement to any
comments with which it disagrees.’*^ On the other hand, the agency
“may consider any other information.”‘*^ This provision gives the
agency a degree of discretion to decide whether or not to take account
of various possibly relevant materials that may come to its attention
while the proceeding is under way. As stated above, any information
that it does consider must be incorporated into the record, as provided
in subsection 302(b)(3).'” Oral contacts are permitted without
restriction; in this regard, the 2010 MSAPA adheres to prevailing
case law at the federal level”*̂ and in all state courts that have
addressed the issue.’*^ Finally, the agency has discretion to hold a live
hearing, but a hearing is not mandatory unless some other state law
requires one to be held.^” All of this is familiar terrain.

“̂ See, e.g.. Citizens for Free Enter, v. Dep’t of Revenue, 649 P.2d 1054,1060
(Colo. 1982); Ne. Ohio Reg’l Sewer Dist. v. Shank, 567 N.E.2d 993, 999, 1001
(Ohio 1991); Methodist Hosps. of Dall., Inc. v. Tex. Indus. Accident Bd., 798
S.W.2d 651, 656 (Tex. App. 1990).

“”2010 MSAPA § 306(a) (emphasis added).
“̂ See §313(1).
“‘̂ § 306(b) (emphasis added).
“‘ § 302(b)(3).
“̂ Sierra Club v. Costle, 657 F.2d 298, 401-02 (D.C. Cir. 1981).
“̂ Citizens Ass’n of Georgetown v. Zoning Comm’n, 392 A.2d 1027,1038-39

(D.C. 1978); Mass. State Pharm. Ass’n v. Rate Setting Comm’n, 438 N.E.2d 1072,
1079 (Mass. 1982); Boyles v. Miss. State Oil & Gas Bd., 794 So. 2d 149, 158
(Miss. 2001).

‘°§306(c).

2011] ; 2010 MSAPA RULEMAKING 865

At the end of the process, the agency publishes the final rule
along with an explanatory statement containing reasons for the rule,
responses to comments, and the like.^’ The final rule must be a
“logical outgrowth” of the notice of proposed rulemaking.^^ This
phrasing adopts the language of the federal case law,̂ ‘̂ superseding
the 1981 MSAPA’s formula, which turned on whether the final rule is
“substantially different” from the proposed rule.̂ “* One cannot pretend
that the revised language will not lead to uncertainties, but at least the
extensive federal |case law on this subject should be helpful to
agencies and private counsel who will have to cope with the
inherently judgmental nature of this issue.

One other detail to notice about the explanatory statement
section is that it omits a provision that had appeared in the
corresponding section of the 1981 Act. That sentence required that
“[o]nly the reasons contained in the concise explanatory statement
may be used by any party as justifications for the adoption of the rule
in any proceeding in which its validity is at issue.”^^ The former
language was an attempt to codify what is commonly known as the
Chenery doctrine.^^ The omission did not occur because of the
drafting committee’s disagreement with Chenery. Rather, it reflected
a belief that this doctrine did not belong in Article 3. Chenery states a
judicial review principle, yet the purpose of Article 3 is to tell the
agency how to conduct a rulemaking proceeding. As phrased, the
1981 language suggested that an agency could not rely on a post hoc
rationalization in its brief, but the court could make up a new

‘ ‘ § 3 1 3 .
” § 308.
” Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 174 (2007).
^”1981 MSAPA §3-107.
Ҥ3-110(b).
” The general principle is that a reviewing court must judge an agency action

solely on grounds invoked by the agency decisionmaker. Fed. Power Comm’n v.
Texaco Inc., 417 U.S. 380, 397 (1974). “Post hoc rationalizations” by agency
counsel do not suffice. Id. “If an is valid only as a determination of policy or
judgment which the agency alone is authorized to make and has not made, a judicial
judgment cannot be made to do service for an administrative judgment.” SEC v.
Chenery Corp., 318 U.S. 80, 88 (1943). For a comprehensive assessment of the
doctrine, see Kevin M. Stack, The Constitutional Foundations o/Chenery, 116
YALE L.J. 952(2007).

866 WIDENER LAW JOURNAL [Vol. 20

justification sua sponte.^^ That was an awkward ambiguity. To be
sure, the 2010 MSAPA did not replace the omitted language with
substitute language in Article 5 (the judicial review article), but that
omission may be for the best. To draft statutory language, one would
have had to take account of various qualifications and exceptions.^^
Chenery is probably better left as a case law doctrine. Indeed, the
federal APA does not codify Chenery and neither did the 1981
MSAPA with respect to adjudication.

D. Time Limits

One other point of divergence from federal law is that section
307(d) of the MSAPA gives the agency a time limit within which it
has to complete the rulemaking proceeding, or else the rule becomes
void.̂ ^ The 1981 MSAPA provided a six-month period from the
publication of the rulemaking notice (or the conclusion of an oral
hearing).^” At least a dozen states also impose deadlines, ranging
from 125 days (Alabama)^’ to about four years (Wisconsin).^^ A year

” Bonfield reports that the drafters of the 1981 MSAPA agreed with Chenery
but “sought to accomplish this result in language more acceptable to judges than an
express limitation on their authority.” BONFIELD, supra note 5, at 317.

^̂ For example, the doctrine does not apply if the issue is purely legal rather
than discretionary, or if it is obvious what the agency would say on remand, or if
only one answer to the unaddressed question would be reasonable. See Bank of Am.
V. FDIC, 244 F.3d 1309, 1319-21 (11th Cir. 2001); Harold J. Krent, Ancillary
Issues Concerning Agency Explanations, in A GUIDE TO JUDICIAL AND POLITICAL

REVIEW OF FEDERAL AGENCIES 197,201-02 (John F. Duffy & Michael Herz eds.,
2005); Stack, supra note 58, at 965-66, 1008-10.

”2010 MSAPA §307(d).
*” 1981 MSAPA § 3-106(b).
‘̂ See ALA. CODE §§ 41-22-5(a)(l), 41-22-6(b) (2008).

^’ W I S . STAT. § 2 2 7 . 1 4 ( 6 ) ( C ) (2011). A query by the MSAPA Reporter,
Professor Gregory Ogden, to the listserv of the Administrative Codes and Registers
Section of the National Association of Secretaries of State retrieved the following
examples, which may not be exhaustive: Arizona, ARIZ. REV. …